ARUNACHALLAM CHETTIAR Vs. CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) THE allegation of the petitioner was that the counter-petitioner who was for the purpose of this petition treated as being in possession of a certain plot of land, was erecting a compound wall in the place of a hedge which existed before; that his consent had not been obtained for the erection and that the object of the counter-petitioner's building a wall was to annex it to his house while it was cultivable land subject to payment of assessment to him. THE contention on the other side was that it was part of the counter-petitioner's property and that he was replacing an old dilapidated wall. THE dispute thus in truth is whether the property belongs to the counter-petitioner as alleged by him. If his allegation be true, it would be quite competent to him to raise the wall without any let or hindrance on the part of the petitioner. Even if it was otherwise, the fact that a tenant encloses agricultural land in his occupation with a wall instead of hedge would not prima facie interfere with the landlord's right. In these circumstances the case is one in which we ought not to interfere in revision as the dispute is really a civil dispute between the parties which ought to be settled by Civil Courts. We accordingly dismiss the petition. In doing so we do not wish to be understood as concurring in the view expressed by the Magistrate if he meant to decide the general question as to the scope of Section 147 of the Criminal Procedure Code. THE words concerning the "use of any land" cannot, we think, be altogether qualified and the section construed as if it contained words that the user to which the dispute relates is a user by a party other than the person in possession. We should hesitate before we accept the restricted construction suggested in the Empress V/s. Ganapat Kalwar 4 Cal. W.N. 779 to which our attention has been drawn on behalf of the counter-petitioner. THE case of Hasi Mohur Thakar V/s. Kissen Sundir I.L.R. 11 C. 52 and the observations in Subba V/s. Trincal I.L.R. 7 M. 461 seem opposed to the view adopted in the case 4, Calcutta Weekly Notes, if we understand it rightly. THEse cases were no doubt decided under the section of the repealed Criminal Procedure Code, the language of which is not identical with that of Section 147 of the present Criminal Procedure Code. THE alteration in the language seems intended rather to enlarge the scope than restrict it. It is perhaps not superfluous to observe that in cases like the present, as pointed out in the case last cited I.L.R. 7 M. 461, the proper course was for the Magistrate to take security from the party from whom a breach of the peace was apprehended though it is not illegal for the Magistrate to act under Section 147.